PEOPLE v. ACOSTA

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Vincent William ACOSTA, Defendant and Appellant.

No. G008518.

Decided: July 31, 1991

Stephen Gilbert, under appointment by the Court of Appeal, Santa Monica, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and John T. Swan, Deputy Attys. Gen., for plaintiff and respondent.

OPINION

Vincent William Acosta appeals his conviction on three counts of second degree murder (Pen.Code, § 187) and one count of unlawfully driving another's vehicle without consent (Veh.Code, § 10851), contending:  (1) there was insufficient evidence his conduct was the proximate cause of the deaths;  (2) there was insufficient evidence of malice;  (3) the jury was erroneously instructed on implied malice;  (4) the trial court erred in admitting his post-arrest statements;  and (5) his sentence constituted cruel and unusual punishment.   In the published portion of the opinion, I agree with his second contention and reverse the murder convictions.   I discuss his fourth contention in the unpublished portion and conclude his fifth contention is moot.

*   *   *

At 10 p.m. on March 10, 1987, Officers Salceda and Francis of the Santa Ana Police Department's automobile theft detail saw Acosta in Elvira Salazar's stolen Nissan Pulsar parked on the street.   The officers approached Acosta and identified themselves.   Acosta inched the Pulsar forward, then accelerated rapidly.   He lead Salceda, Francis and officers from other agencies on a 48–mile chase along numerous surface streets and freeways throughout Orange County.   The chase ended near Acosta's residence in Anaheim.

During the chase, Acosta engaged in some of the most egregious driving tactics imaginable.   He ran stop signs and red lights, and drove on the wrong side of streets, causing oncoming traffic to scatter or swerve to avoid colliding with him.   Once, when all traffic lanes were blocked by vehicles stopped for a red light, he used a dirt shoulder to circumvent stationary vehicles and pass through the intersection.   When leaving the freeway in Anaheim, he drove over a cement shoulder.

Throughout the pursuit, Acosta weaved in and out of traffic, cutting in front of other cars and causing them to brake suddenly.   At one point on the freeway, he crossed three lanes of traffic, struck another car, jumped the divider between the freeway and a transition lane, and passed a tanker truck, forcing it to swerve suddenly to avoid a collision.

Acosta generally drove at speeds between 60 and 90 miles per hour, slowing only when necessary.   During several turns, his wheels lost traction.   When an officer was able to drive parallel to the Pulsar for a short distance, Acosta looked in his direction and smiled.   Near the end of the chase, one of the Pulsar's front tires blew out, but Acosta continued to drive at 55 to 60 miles per hour, crossing freeway traffic lanes.

Police helicopters from Anaheim, Costa Mesa, Huntington Beach, and Newport Beach assisted in the chase by tracking Acosta.   During the early part of the pursuit, the Costa Mesa and Newport Beach craft were used, pinpointing Acosta's location with their high beam spotlights.   The Costa Mesa helicopter was leading the pursuit, in front of and below the Newport Beach helicopter.   As they flew into Newport Beach, the pilots agreed the Newport Beach craft should take the lead.   The normal procedure for such a maneuver is for the lead helicopter to move to the right and swing around clockwise behind the other craft while climbing to an altitude of 1,000 feet.   At the same time, the trailing helicopter descends to 500 feet while maintaining a straight course.

At the direction of the Costa Mesa pilot, the Newport Beach helicopter moved forward and descended while the Costa Mesa helicopter banked to the right.   Shortly after commencing this procedure, the Costa Mesa helicopter, having terminated radio communication, came up under the Newport Beach helicopter from the right rear and collided with it.   Both helicopters fell to the ground.   Three occupants in the Costa Mesa helicopter died as a result of the crash.

Menzies Turner, a retired Federal Aviation Administration (FAA) investigator, testified as an expert and concluded the accident occurred because the Costa Mesa helicopter, the faster of the two aircraft, made a 360–degree turn and closed too rapidly on the Newport Beach helicopter.   He opined the Costa Mesa helicopter's pilot violated an FAA regulation prohibiting careless and reckless operation of an aircraft by failing to properly clear the area, not maintaining communication with the Newport Beach helicopter, failing to keep the other aircraft in view at all times, and not changing his altitude.   He also testified the Costa Mesa pilot violated another FAA regulation prohibiting operation of one aircraft so close to another as to create a collision hazard.2

Turner could not think of any reason for the Costa Mesa helicopter's erratic movement.   The maneuver was not a difficult one, and was not affected by the ground activity at the time.   He had never heard of a midair collision between two police helicopters involved in tracking a ground pursuit, and had never investigated a midair collision involving helicopters.3

After his arrest Acosta told the police he knew the Pulsar was stolen and he fled the police to avoid arrest.   He also saw two helicopters with spotlights, and turned off the Pulsar's lights to evade them.   Acosta knew that his flight was dangerous “to the bone,” but he tried to warn other cars by flashing the car lights and by otherwise being “as safe as possible.”

I

Acosta claims there was insufficient evidence of two elements necessary to support the convictions for second degree murder:  that he proximately caused the deaths of the victims, and that his state of mind constituted implied malice.  (People v. Scola (1976) 56 Cal.App.3d 723, 726, 128 Cal.Rptr. 477 [proximate cause];  People v. Spring (1984) 153 Cal.App.3d 1199, 1204, 200 Cal.Rptr. 849 [malice].)   He is correct on the latter claim.

As to the proximate cause issue, Acosta argues that although a collision between ground vehicles was a foreseeable result of his conduct, one between airborne helicopters was not, noting his expert had never heard of a similar incident.   He also contends the Costa Mesa helicopter pilot's violation of FAA regulations was a superseding cause.   Because the deaths here were unusual, to say the least, the issue deserves special scrutiny.

 Proximate cause in criminal cases is determined by ordinary principles of causation.  (People v. Armitage (1987) 194 Cal.App.3d 405, 420, 239 Cal.Rptr. 515.) 4  It is initially a question of fact for the jury to decide.  (People v. Harris (1975) 52 Cal.App.3d 419, 427, 125 Cal.Rptr. 40.)   When the sufficiency of the evidence is challenged, the court is not required to “ ‘ “ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.”  [Citation omitted.]   Instead the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’  [Citation.]”  (People v. Johnson (1980) 26 Cal.3d 557, 576, 162 Cal.Rptr. 431, 606 P.2d 738.)

“In determining whether a reasonable trier of fact could have found defendant guilty beyond a reasonable doubt, the appellate court ‘must ․ presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’  [Citations.]  The court does not, however, limit its review to the evidence favorable to the respondent․  ‘[O]ur task ․ is twofold.   First, we must resolve the issue in the light of the whole record—i.e., the entire picture of the defendant put before the jury—and may not limit our appraisal to isolated bits of evidence selected by the respondent.   Second, we must judge whether the evidence of each of the essential elements ․ is substantial;  it is not enough for the respondent simply to point to “some” evidence supporting the finding, for “[n]ot every surface conflict of evidence remains substantial in the light of other facts.” ’  [Citation.]”  (Id. at pp. 576–577, 162 Cal.Rptr. 431, 606 P.2d 738.)

To determine whether Acosta's conduct was not, as a matter of law, a proximate cause of death of the Costa Mesa helicopter's occupants, I enter a legal realm not routinely considered in published California cases.   When a causation issue arises, it does so almost invariably in homicide cases (1 Witkin & Epstein, Cal.Criminal Law (2d ed. 1988) Elements of Crime, § 126, p. 146), and often involves a discussion of the subject severely limited to an expedient disposition of the narrow question at hand.   This leaves the possibility for misapprehension about the number of factors which actually should be (or implicitly were) considered in resolving the issue.5  I approach the issue broadly because several theoretical concepts of proximate cause impinge on this case.

“Proximate cause” is the term historically used 6 to separate those results for which an actor will be held responsible from those not carrying such responsibility.   The term is, in a sense, artificial, serving matters of policy surrounding tort and criminal law and based partly on expediency and partly on concerns of fairness and justice.  (Perkins & Boyce, supra, at p. 776.)   Because such concerns are sometimes more a matter of “common sense” than pure logic, the line of demarcation is flexible, and attempts to lay down uniform tests which apply evenly in all situations have failed.  (Id. at pp. 776–777.)   That does not mean general guidelines and approaches to analysis cannot be constructed.

 The threshold question in examining causation is whether the defendant's act was an “actual cause” of the victim's injury.   It is a sine qua non test:  But for the defendant's act would the injury have occurred?   Unless an act is an actual cause of the injury, it will not be considered a proximate cause.  (Perkins & Boyce, supra, at pp. 771–772, 774;  see People v. Capetillo (1990) 220 Cal.App.3d 211, 220, 269 Cal.Rptr. 250 [defendant's joyriding not shown to be the cause of accident];  People v. Scola, supra, 56 Cal.App.3d at p. 726, 128 Cal.Rptr. 477 [defendant's speeding was actual cause of accident].) 7

 The next inquiry is whether the defendant's act was a “substantial factor” in the injury.   This test excludes those actual causes which, although direct, play only an insignificant role in the ultimate injury.8  Although there is no strict definition, the Restatement Second of Torts, supra, section 433, lists considerations in determining whether a factor is “substantial”:  (1) the number and extent of other factors contributing to the harm;  (2) whether the forces created by the actor are continuous in producing the harm or merely create a condition upon which independent forces act;  and (3) any lapse of time between the act and the harm.  (Rest.2d Torts, supra, § 433, at p. 433.)

 In California, the substantial factor issue has arisen most often where multiple causes act concurrently, but independently,9 to produce the harm.10  The test is one of exclusion only.   Unless a cause is a substantial factor in the harm it will not be considered a proximate cause, but some substantial factor causes may not be deemed proximate causes.   (Perkins & Boyce, supra, at p. 780;  see People v. Caldwell, supra, 36 Cal.3d at pp. 220–221, 203 Cal.Rptr. 433, 681 P.2d 274 [citing Perkins & Boyce];  People v. Pike (1988) 197 Cal.App.3d 732, 746, 243 Cal.Rptr. 54.) 11

A related concept which may lead to a refusal to treat an actual cause as a proximate cause is where a force set in motion by the defendant has “ ‘come to rest in a position of apparent safety.’ ”  (Perkins & Boyce, supra, at pp. 780–781;  see People v. Caldwell, supra, 36 Cal.3d at pp. 219–220, 203 Cal.Rptr. 433, 681 P.2d 274.)   Perkins and Boyce give the example of the actor who dislodges a rock which comes to rest against a tree.   If the tree bends or breaks six months later, releasing the rock, the original action is not considered the proximate cause of any resulting harm.  (Perkins & Boyce, supra, at p. 780.) 12

To this point I have spoken only of direct causes, “[causes] which produce [ ] a result without the aid of any intervening cause․”  (Perkins & Boyce, supra, at p. 787.)   Because it is tautological, the definition is of little value in identifying a cause in the absence of a working definition of an indirect cause.   However, Perkins and Boyce list several examples of direct causation, headed by the observation that, “If sequences follow one another in such a customary order that no other cause would commonly be thought of as intervening, the causal connection is spoken of as direct for juridical purposes even though many intervening causes might be recognized by a physicist.”  (Id. at p. 788, italics added.)

 The critical concept at this juncture is that a direct cause which is a substantial factor in the ensuing injury is almost always a proximate cause of it.  (Id at pp. 788–790;  see People v. French (1978) 77 Cal.App.3d 511, 523–525, 143 Cal.Rptr. 782 [defendant's drunk driving was direct cause of bicyclist's death].)   This is so even if the result is exacerbated by a latent condition in the victim or caused by a third party.  (People v. Fugatt (1991) 229 Cal.3d 240, 280 Cal.Rptr. 37 [drunken defendant struck allegedly defective gas tank of victims' car];  People v. Stamp (1969) 2 Cal.App.3d 203, 210–211, 82 Cal.Rptr. 598 [defendant triggered heart attack in store clerk during armed robbery];  1 Witkin & Epstein, supra, at pp. 147–148.) 13  The only exception is where the result is “highly extraordinary” in view of its cause.  (See Rest.2d Torts, supra, § 435, p. 449.) 14

However, the defendant is not always the direct cause of the harm.   Sometimes forces arise between the act of the defendant and the harm, called “intervening causes.”   They are of two types, dependent and independent, and include acts of God.  (1 Witkin & Epstein, supra, at pp. 148–150;  Perkins & Boyce, supra, at p. 791.)

 An intervening cause is dependent if it is a normal or involuntary response to, or result of, the defendant's act.  (1 Witkin & Epstein, supra, at p. 148;  see also Perkins & Boyce, supra, at p. 791 [“[a]n intervening cause ․ produced by the first cause.”].)   These include flight and other voluntary or involuntary responses of victims, as well as defense, rescue and medical treatment by third parties.   Even where such responses constitute negligent conduct, they do not supersede the defendant's act;  i.e., they are nevertheless considered proximate causes of the harm.  (People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515 [victim foolishly chose to attempt to swim to shore after defendant capsized the boat];  Perkins & Boyce, supra, at pp. 792–809.) 15

 Conversely, when the defendant's conduct merely places the eventual victim in a position which allows some other action to cause the harm, the other action is termed an independent intervening cause.   It usually supersedes the defendant's act;  i.e., precludes a finding of proximate cause.  (Perkins & Boyce, supra, at pp. 791, 809 [“merely happen[s] to take effect upon a condition created by the first cause[;]  operates upon a condition produced by an antecedent [cause] but is in no sense a consequence thereof”];  1 LaFave & Scott, supra, at pp. 406–407 [distinguishing matters of “response” from matters of “coincidence”];  see 1 Witkin & Epstein, supra, at pp. 149–150.)   The issue usually arises when the victim has been subjected to the independent harm after being disabled by the defendant, or is somehow impacted by the defendant's flight.  (See People v. Pike, supra, 197 Cal.App.3d at pp. 747–748, 243 Cal.Rptr. 54 [one police officer killed when struck by another while pursuing defendant];  People v. Harris, supra, 52 Cal.App.3d at p. 426, 125 Cal.Rptr. 40 [pursuing officer kills third party while pursuing defendant];  Perkins & Boyce, supra, at pp. 809–811 [falling stone hits man disabled by defendant;  girl recovering from gunshot wound contracts scarlet fever from treating physician;  bystander kicks to death victim knocked down by defendant;  decedent may have inexplicably run into fire caused by defendant].)

 An independent intervening variable will not be superseding in three instances:  (1) where it is merely a contributing cause to the defendant's direct cause; 16  (2) where the result was intended;  or (3) where the resultant harm was reasonably foreseeable when the act was done.  (Perkins & Boyce, supra, at pp. 809–810;  see also 1 Witkin & Epstein, supra, at p. 150;  1 LaFave & Scott, supra, at pp. 413–415.)   As to the third exception, “ ‘[t]he consequence need not have been a strong probability;  a possible consequence which might reasonably have been contemplated is enough․  The precise consequence need not have been foreseen;  it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.’  [Citation.]”  (People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40.)

As Perkins and Boyce put it, “ ‘Foreseeability’ is not a ‘test’ which can be applied without the use of common sense;  it presents one of those problems in which ‘we must rely on the common sense of the common man as to common things.’   It is employed in the sense of ‘appreciable probability.’   It does not require such a degree of probability that the intervention was more likely to occur than not;  and on the other hand it implies more than that someone might have imagined it as a theoretical possibility.   It does not require that the defendant himself actually thought of it.   For the purposes of proximate cause ‘an appreciable probability is one which a reasonable man in ordering his conduct in view of his situation and his knowledge and means of knowledge, should, either consciously or unconsciously, take into account in connection with the other facts and probabilities then apparent.’ ”  (Perkins & Boyce, supra, at pp. 817–818, fns. omitted.) 17

 Prosser and Keeton, in an in-depth discussion of the dynamics of foresight, conclude that although it is desirable to exclude extremely remarkable and unusual results from the purview of proximate cause, it is virtually impossible to express a logical verbal formula which will produce uniform results.  (Prosser & Keeton, supra, at p. 300.)   I agree.   The standard should be simply stated, exclude extraordinary results, and allow the trier of fact to determine the issue on the particular facts of the case using “ ‘the common sense of the common man as to common things.’ ”   (Perkins & Boyce, supra, at p. 817.) 18  As with other ultimate issues, appellate courts must review that determination, giving due deference to the trier of fact.

 The “highly extraordinary result” standard serves that purpose.   It is consistent with the definition of foreseeability used in California.  (See People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40.)   It does not involve the defendant's state of mind, but focuses upon the objective conditions present when he acts.19  Like numerous other legal definitions, what it means in practice will be determined as case law develops.   Limitations arising from the mental state of the actor can be left to concepts like malice, recklessness and negligence.

 Because the highly extraordinary result standard is consistent with the limitation on direct causes, it simplifies the proximate cause inquiry.   The analysis is:  (1) was the defendant's conduct the actual cause of the harm (but for his actions would it have occurred as it did)?  (2) was the result an intended consequence of the act? (3) was the defendant's action a substantial factor in the harm? and (4) was the result highly extraordinary in light of the circumstances?

If the first question is answered no, proximate cause is lacking.   If answered yes, the next question must be examined.   If the second question is answered yes, proximate cause is established.   If answered no, the next question must be examined.   If the third question is answered no, proximate cause is lacking.   If answered yes, proximate cause is established unless the fourth question is answered yes, in which case it is lacking.   The analysis does away with the need to consider the distinction between direct, concurrent, contributory, and dependent and independent intervening causes.   It focuses, as it should, upon the role the defendant's act played in the harm, limiting culpability only where the conduct was de minimis or the result highly extraordinary.  (See Perkins & Boyce, supra, at pp. 823–824 [using a similar approach].)

 Here, but for Acosta's conduct of fleeing the police, the helicopters would never have been in position for the crash.   However, there was no evidence he intended the harm, so I must examine questions three and four.

Although an extremely close question, Acosta's conduct was a substantial factor in causing the crash.   He was fleeing when the accident occurred, and there was no lapse of time between his flight and the crash—his action had not “come to rest.”   The only other factor operating at the time was the improper flight pattern of the Costa Mesa pilot.   Although Acosta's horrendous driving did not cause the helicopter's improper maneuver, his flight undoubtedly infused excitement and tension into the situation, which can be considered to be a substantial factor.   No similar case has held otherwise, although the third party collisions all have involved accidents on the ground.  (See People v. Pike, supra, 197 Cal.App.3d 732, 243 Cal.Rptr. 54;  People v. Harris, supra, 52 Cal.App.3d 419, 125 Cal.Rptr. 40;  see also People v. Kemp (1957) 150 Cal.App.2d 654, 310 P.2d 680 [drag racer was proximate cause of accident involving the other racer].)

The result was not highly extraordinary.20  Although a two-helicopter collision was unknown to expert witness Turner and no reported cases describe one, it was “ ‘a possible consequence which reasonably might have been contemplated.’ ”  (People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40.)   Given the emotional dynamics of any police pursuit, there is an “appreciable probability” that one of the pursuers, in the heat of the chase, may act negligently or recklessly to catch the quarry.  (Perkins & Boyce, supra, at p. 817.) 21  That no pursuits have ever before resulted in a helicopter crash or midair collision is more a comment on police flying skill and technology than upon the innate probabilities involved.22

 Justice Crosby's opinion parts company with this analysis, reasoning that “neither the intervening negligent conduct nor the risk of harm was foreseeable.”  (Separate opn. of Crosby, J. at p. 139.)   He justifies this conclusion by reference to the well-traveled opinion of Justice Cardozo in Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 100.   Reliance on Palsgraf reveals the error in the analysis.23  Justice Cardozo approached the problem from the perspective of duty, concluding that the defendant owed no duty of care to an unforeseeable plaintiff.   Although the interesting facts and novel analysis of Palsgraf 24 have made it a favorite in law school texts, the four-to-three decision is not the gospel on proximate cause.  (See generally Prosser & Keeton, supra, at pp. 273–274, 280–281, 284–289.)   Because of its confusion between foreseeability as it relates to negligence and as it relates to causation, I have eliminated it from the proximate cause analysis.

Doing so avoids the undesirable risk of completely absolving a defendant of all liability on causation grounds when morally he should suffer some punishment for the consequences.   When a defendant is the actual and substantial cause of the harm,25 the consequences of the act should depend upon the mens rea involved.  (See Perkins & Boyce, supra, at p. 813;  1 LaFave & Scott, supra, at pp. 398–399.)

The undisputed facts of this case mandate the result.   Contrary to Justice Moore's assertion (separate opn. of Moore, J. at p. 5), I do not find the result extraordinary, but almost so.   I presume he does not dispute that it was extremely unusual.   In fact, he cites no similar instances of aircraft colliding during police pursuits.26  But neither does Justice Crosby cite any case to support his claim the result was highly extraordinary.27

Neither concurring opinion offers case law “on all fours,” suggesting this case is unique and presents a close question.   Partly because this is so, it is appropriate to rely on two compelling factors:  the jury found proximate cause based on proper instructions,28 and the dearth of case law to support a rejection of that finding.   Given these circumstances, a finding of proximate cause is appropriate.

II

 Acosta also contends the evidence was insufficient as a matter of law to show he acted with malice, arguing it failed to establish he acted with a conscious disregard for a substantial risk of death.   I agree.

Penal Code section 188 defines malice:  “[It] may be express or implied.   It is express when there is manifested a deliberate intention unlawfully to [kill].   It is implied, when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.”

No contention is made that Acosta intentionally killed the victims.   I deal with implied malice, a concept not well defined by the statute.  (People v. Dellinger (1989) 49 Cal.3d 1212, 1217, 264 Cal.Rptr. 841, 783 P.2d 200.)   Over the years the cases expressed the concept two ways.   As People v. Dellinger, supra, described it, “[In one line of cases] we construed ․ implied malice as that state of mind where ‘the defendant for a base, antisocial motive and with wanton disregard for human life, does an act that involves a high degree of probability that it will result in death.’   [Citations.]  [¶] [In another line of cases], we phrased the definition in a different way, holding that malice is presumed when ‘ “the killing proximately resulted from an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.” ’  [Citations.]”  (Id. at p. 1218, 264 Cal.Rptr. 841, 783 P.2d 200.)

The definitions contained two notable differences.   The first mentions a wanton disregard for life, but the second uses a conscious disregard for life.   And the first definition speaks of a high probability of death, while the second refers to consequences which are merely dangerous to life.   Later cases remedied confusion arising from these disparities.

In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the Supreme Court held that “a finding of implied malice depends upon a determination that the defendant actually appreciated the risk involved, i.e., a subjective standard.  [Citation.]”  (Id. at pp. 296–297, 179 Cal.Rptr. 43, 637 P.2d 279.)   This conclusion comports with the analyses of the major commentators.  (Perkins & Boyce, supra, at p. 858 [“heedless disregard of a harmful result, foreseen as a likely possibility”];  2 LaFave & Scott, Substantive Criminal Law (1986) § 7.4, p. 205 [“to convict of murder ․ subjective realization should be required”].)  People v. Dellinger, supra, 49 Cal.3d at page 1221, 264 Cal.Rptr. 841, 783 P.2d 200 held that the term “conscious disregard for human life” best expresses the subjective appreciation standard.

Whether there must be a high probability of death arising from the defendant's conduct was considered by the Supreme Court in People v. Patterson (1989) 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549, a second degree felony-murder case.   A majority of the court found that a high probability of death was necessary for second degree felony murder because that is the standard required to show implied malice.   In doing so it relied on substantial precedent.   (Id. at pp. 626–627, 640–641, 262 Cal.Rptr. 195, 778 P.2d 549;  see also People v. Davenport (1985) 41 Cal.3d 247, 262, 221 Cal.Rptr. 794, 710 P.2d 861;  People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279;  People v. Poddar (1974) 10 Cal.3d 750, 757, 111 Cal.Rptr. 910, 518 P.2d 342;  People v. Spring, supra, 153 Cal.App.3d at p. 1205, 200 Cal.Rptr. 849.) 29  I can only conclude the requirement for implied malice is that there be a high probability that death will result from the defendant's act.30

Thus, to sustain Acosta's conviction, I must conclude that a reasonable jury could find beyond a reasonable doubt (see People v. Johnson, supra, 26 Cal.3d at p. 576, 162 Cal.Rptr. 431, 606 P.2d 738) that Acosta committed an act with a high probability it would result in death and a conscious disregard for the risk involved.  (People v. Watson, supra, 30 Cal.3d at pp. 296–297, 300, 179 Cal.Rptr. 43, 637 P.2d 279.) 31  Our first task is to identify “the risk involved.”

Relying on People v. Albright (1985) 173 Cal.App.3d 883, 886–887, 219 Cal.Rptr. 334, the Attorney General asserts the risk is that to human life in general.   In Albright the court rejected the defendant's claim that the evidence must show he consciously disregarded the risk to the life of the ultimate victim.   The court reasoned:  “Nowhere in its opinion did the [court in People v. Watson, supra, 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279] suggest implied malice requires awareness of life-threatening risk to a particular person.   Instead, implied malice may be found under Watson whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person.   [Citation.]  A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states.   [Citations.]”  (Id. 173 Cal.App.3d at p. 887, 219 Cal.Rptr. 334, fn. omitted.)

The result in Albright was correct.   The suicidal defendant drove at speeds of 90 to 110 miles per hour while under the influence of alcohol, missing 3 cars but striking the last and killing the occupant.   There was no requirement that he consciously disregard the safety of the actual victim to be guilty of murder.   But if the Albright court meant to say he was liable for any death which ensued if he consciously disregarded the life of anyone, I respectfully disagree.   I review the cases and authorities relied upon in Albright to discern the basis for the court's statement.

The first case cited was a decision by this court, People v. Spring, supra, 153 Cal.App.3d 1199, 200 Cal.Rptr. 849.   There, we said, “Malice aforethought neither presupposes nor requires any ill will or hatred of a particular victim.”  (Id. at p. 1204, 200 Cal.Rptr. 849.)   But the facts involved a direct physical assault by the defendant upon the victim.   The emphasis was upon the absence of an ill will requirement, not the culpability of a defendant whose assault fells an unexpected victim.

Likewise, similar statements in People v. Poddar, supra, 10 Cal.3d at pages 759–760, 111 Cal.Rptr. 910, 518 P.2d 342 and People v. Conley (1966) 64 Cal.2d 310, 321–322, 49 Cal.Rptr. 815, 411 P.2d 911 were general in nature and directed to diminished capacity issues.  People v. Marcy (Colo.1981) 628 P.2d 69, an out-of-state case, involved a man who shot his wife.   The statement that “ ‘ “extreme indifference to human life,” by definition, does not address itself to the life of the victim, but to human life generally,’ ” was quoted as part of a discussion distinguishing Colorado's extreme indifference murder from an intentional killing.  (Id. at p. 76.)

The only case cited in People v. Albright, supra, 173 Cal.App.3d 883, 219 Cal.Rptr. 334 which dealt with a “nonspecific” victim was People v. Stein (1913) 23 Cal.App. 108, 137 P. 271.  (Id. 173 Cal.App.3d at p. 887, 219 Cal.Rptr. 334.)   There, the drunken defendant, apparently angered by noise emanating from an electric piano at the hotel where he was staying, ran into the room and fired five shots into the assembled crowd, killing a man.32  In affirming the judgment, the court opined, “The deliberate and unnecessary discharging of a gun into a multitude of people, with an utter disregard of the consequences of the act, whereby human life is destroyed, is murder, and malice will be implied, although the perpetrator of the act had no malice against any particular person of the multitude into which he so fired.   [Citation.]”  (Id. at pp. 114–115, 137 P. 271, italics added.)

The statement of law is correct.   If the defendant had “malice,” in either the legal or informal sense, against the ultimate victim, the logical conclusion would be that the killing was intentional and done with “actual” malice.  (Pen.Code, § 188.)   But in both People v. Stein, supra, 23 Cal.App. 108, 137 P. 271 and People v. Albright, supra, 173 Cal.App.3d 883, 219 Cal.Rptr. 334, the ultimate victim came from that group which his reckless act directly put at risk.   In Stein it was the crowd in the piano room;  in Albright it was motorists on the street.   Factually, neither of these cases can stand for the proposition that if a defendant acts recklessly toward a discernable high risk group, he is strictly liable for a death which might occur outside the group.

Under the definition of implied malice, the defendant's conduct must carry a high probability of death.   It is that risk which the defendant must consciously disregard and which must result in the death.   Any other interpretation would allow a defendant to be held culpable for murder based upon a death which was barely foreseeable,33 and which had no conscious disregard associated with it.

Our Supreme Court has not countenanced such a result.   In People v. Caldwell, supra, 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, the defendant claimed that affirming his vicarious liability murder conviction 34 would result in a “cleavage between culpability and criminal liability․”  (Id. at p. 223, 203 Cal.Rptr. 433, 681 P.2d 274.)   The court responded that “a common sense recognition of the idea that an act should be considered in the light of its natural and foreseeable results when they occur [citation] does not preclude inquiry into the felons' subjective knowledge of the likely result of their actions;  rather, it informs the inquiry.   The proper focus on the individual culpability of accomplices is retained by the requirement that one or more of them engage in conduct which it is highly probable (not merely foreseeable) will result in death, evincing a conscious disregard of human life.  [Citations.]” (Ibid.) 35

The victim in Caldwell, an accomplice of the defendants as, along with the defendants, a felon who resisted capture by a display of arms, and within the group which faced a high probability of death.   The victims here were not.   The group of persons on the ground near Acosta faced a high probability of death.   But he did not kill someone there and the risk created for the group in the air was minimal.   Acosta's flight only caused the helicopter pilots to “be there.”   There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot.   As to the victims, his conduct did not create a high probability of death.36  No juror could have reasonably found to the contrary.

Furthermore, there is no evidence Acosta had a conscious disregard for any risk to the helicopters.   Although he stated he knew his conduct was dangerous “to the bone,” nothing connected the statement to the aerial surveillance.   His knowledge that there were helicopters involved in the pursuit does not suffice.   In the absence of more evidence, no reasonable juror could find a conscious disregard for a risk which is barely objectively cognizable.37

III

 Amicus curiae argues the prosecution's special instruction on the issue of proximate causation was erroneous.   Taken together, however, the instructions adequately advised the jury.38

The trial court gave four instructions on proximate cause.   One was a modified combination of CALJIC No. 341 (5th ed. 1989 pocket pt.), and No. 8.56 (5th ed. 1988) and discussed concurrent causes and proximate cause in general.39  The other three dealt with the concept of intervening causes.   The first two were submitted by Acosta and the third by the prosecution.40

Jury instructions must be read together and their correctness determined from the entire charge given, not from parts of an instruction or one instruction alone.  (People v. Burgener (1986) 41 Cal.3d 505, 538–539, 224 Cal.Rptr. 112, 714 P.2d 1251;  People v. Talamantez (1985) 169 Cal.App.3d 443, 454, 215 Cal.Rptr. 542.)   The prosecution's special instruction cannot be considered in a vacuum.   Through all of the instructions, the court properly explicated the concepts of proximate cause:  actual cause, substantial factor, concurrent cause, intervening cause and extraordinary results.   The court advised the jury to exonerate Acosta if it found the helicopter collision to be highly unusual or extraordinary.   Amicus curiae does not contend the other proximate causation instructions were erroneous or deficient.   At worst, the prosecution's instruction was superfluous.

The language of the prosecution's instruction was taken, almost verbatim, from four cases.  (People v. Pike, supra, 197 Cal.App.3d at pp. 747, 749, 243 Cal.Rptr. 54;  People v. Armitage, supra, 194 Cal.App.3d at pp. 420–421, 239 Cal.Rptr. 515;  People v. Harris, supra, 52 Cal.App.3d at p. 427, 125 Cal.Rptr. 40;  People v. Hebert (1964) 228 Cal.App.2d 514, 521, 39 Cal.Rptr. 539.)   Although the instructions were not stated in the simplified terms I have set forth, they were ample and cogent.

IV *

The judgment is reversed on the murder counts and is affirmed in all other respects.43

I dissent.   Once again, the lead opinion of this court expresses its antipathy with the concept of implied malice by ignoring Supreme Court precedent.   In People v. Dellinger (1989) 49 Cal.3d 1212, 264 Cal.Rptr. 841, 783 P.2d 200, the Supreme Court reversed this court, holding the “wanton disregard for human life” definition of implied malice, while not as comprehensible as the “conscious disregard for human life” standard, was equivalent to the latter test and adequately conveyed to a jury the requirement that the defendant subjectively realize his or her conduct presents a life-threatening risk to others.  (Id. at pp. 1215, 1219–1221, 264 Cal.Rptr. 841, 783 P.2d 200.)   The court specifically approved the definition of implied malice contained in the most recent revisions of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.).  (Id. at p. 1222, 264 Cal.Rptr. 841, 783 P.2d 200.)   Nonetheless, the lead opinion now wants to create a new definition of implied malice and then employ it to conclude the evidence does not support appellant's conviction for murder.   Justice Crosby's concurrence and dissent finds no criminal liability at all because the victims were in aircraft, not ground units.1

With respect to the other issues presented in this case, I concur in the result, though not the lead opinion's reasoning concerning the sufficiency of the evidence and instruction of the jury on proximate cause.   I also agree appellant's post-arrest statements were properly admitted at trial.   Finally, I would conclude the lower court's sentence was proper.   The judgment should be affirmed in its entirety.

I. Proximate Cause

I agree the evidence supports the jury's finding appellant proximately caused the victims' deaths.   But I find the lead opinion's creation of a new test for proximate cause unnecessary and inappropriate.   I also conclude the lower court's instructions on proximate cause were correct.

“The question whether defendant's acts or omissions criminally caused the victim's death is to be determined according to the ordinary principles governing proximate causation.  [Citations.]  Proximate cause of a death has traditionally been defined in criminal cases as ‘a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.’  [Citations.]  (People v. Armitage (1987) 194 Cal.App.3d 405, 420, 239 Cal.Rptr. 515.)

Negligence on the part of the victim or another will not necessarily break the chain of causation.  (People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515;  People v. Harris (1975) 52 Cal.App.3d 419, 426, 125 Cal.Rptr. 40.)  “Although defendant's own unlawful act must be a proximate cause of the death, negligence on the part of the victim is not a defense to criminal liability.  [Citations.]  Moreover, defendant's conduct can be a proximate cause of a death even where death results from collision with a third vehicle.  [Citations.] ․ [¶] A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause.   If an intervening cause is a normal and reasonably foreseeable result of defendant's original act the intervening act is ‘dependent’ and not a superseding cause, and will not relieve defendant of liability.  [Citation.]  ‘(1) The consequence need not have been a strong probability;  a possible consequence which might reasonably have been contemplated is enough.  (2) The precise consequence need not have been foreseen;  it is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.’  [Citation.]  (People v. Harris, supra, at pp. 426–427, 125 Cal.Rptr. 40.)

The present case is analogous to prior cases.   In People v. Harris, supra, 52 Cal.App.3d 419, 125 Cal.Rptr. 40, the Court of Appeal reversed the dismissal of a vehicular manslaughter prosecution where a police car pursuing defendant in a high speed chase collided with another vehicle killing one of its passengers.  “It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase.”  (Id. at p. 427, 125 Cal.Rptr. 40.)

In People v. Pike (1988) 197 Cal.App.3d 732, 243 Cal.Rptr. 54, the Court of Appeal affirmed a vehicular manslaughter conviction that arose when two police cars pursuing the defendant in a high-speed chase collided resulting in the death of one of the officers.   The evidence reflected the deceased officer's negligence contributed to the collision.  (Id. at pp. 748–750, 243 Cal.Rptr. 54.)   Citing Harris, the court stated:  “Defendant's ․ acts consisted of his seeking to elude the pursuing law enforcement officers by charging through traffic at extremely high speeds․  The speeds, places, conditions and methods of driving were primarily dictated by defendant;  he chose the route and speeds.   Predictably, the officers chose to follow suit․  The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred.  [Citations.]”  (Id. at pp. 749–750, 243 Cal.Rptr. 54.)

I fail to see any significant difference between Pike, Harris and this case.   Three persons died when two police vehicles collided during a nighttime, high-speed vehicle pursuit between contiguous cities located in a densely populated area.   The pursuit arose when appellant chose to flee rather than submit to a detention by two police officers.

The mere fact the collision involved aircraft rather than ground vehicles is a distinction without a difference.   The use of helicopters by the police is well known;  their advantage in assisting ground units to locate and pursue a fleeing vehicle is obvious.   Given the route chosen by appellant, it was foreseeable police helicopters from different cities would participate in the chase.   Furthermore, appellant knew that more than one helicopter was involved in the chase.   The possibility that during the nighttime chase one of the helicopter pilots might negligently operate his craft and thereby cause a mid-air collision was as foreseeable as the negligent operation of the police cars in Pike and Harris.

Both the lead opinion and Justice Crosby's opinion suggest the helicopter collision was an “extraordinary” event, noting research has not unearthed any prior case involving a similar incident.  (Lead Opn. at pp. 120, fn. 3;  126;  128, fn. 27:  Dis. opn. at p. 140.)   But this case does not present the first recorded collision between two aircraft while in flight.   Over the past several years there have been several incidents of either midair collisions or “near misses” between aircraft.   Furthermore, these incidents occurred in routine flight operations.   Indeed, many experts have expressed a concern that the potential for midair collisions between aircraft is increasing.   If such accidents occur between aircraft engaged in routine operations, it should come as no surprise that two police helicopters participating in the nighttime pursuit of a fleeing motorist might also collide with each other.

The mere fact a midair collision between two helicopters has never occurred before does not defeat the existence of proximate cause.   In Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 123 Cal.Rptr. 468, 539 P.2d 36, defendant radio station conducted a contest where listeners could win prizes by being the first to locate a radio personality at specified locations in the Los Angeles area.   During the contest, two participants in the contest were following the radio personality.   While maneuvering for position, the two participants forced plaintiffs' decedent's car onto the center divider where it overturned.   Plaintiffs successfully sued the participants and radio station for wrongful death.   The station appealed.   Claiming it owed no duty to the decedent because of its conduct, the station argued the accident was not foreseeable because there had been no similar prior injury.

The Supreme Court affirmed, rejecting the station's argument.  “Such an argument confuses foreseeability with hindsight, and amounts to a contention that the injuries of the first victim are not compensable.  ‘The mere fact that a particular kind of an accident has not happened before does not ․ show that such accident is one which might not reasonably have been anticipated.’   [Citation.]  Thus, the fortuitous absence of prior injury does not justify relieving defendant from responsibility for the foreseeable consequences of its acts.”  (Weirum v. RKO General, Inc., supra, 15 Cal.3d at p. 47, 123 Cal.Rptr. 468, 539 P.2d 36.)

This case presents an analogous situation.   While Weirum involved the question of a defendant's duty to exercise due care, the test of foreseeability is the same where the issue is proximate cause.  (Sagadin v. Ripper (1985) 175 Cal.App.3d 1141, 1159, 221 Cal.Rptr. 675;  Bilyeu v. Standard Freight Lines (1960) 182 Cal.App.2d 536, 542, 6 Cal.Rptr. 65.   See also Maupin v. Widling (1987) 192 Cal.App.3d 568, 576, 237 Cal.Rptr. 521;  Premo v. Grigg (1965) 237 Cal.App.2d 192, 195, 46 Cal.Rptr. 683;  6 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 751, p. 90.)

The events leading up to the helicopter collision were set in motion by appellant's decision to flee from the police.   It was predictable that, in response, the police would pursue appellant and use whatever means available to them to locate and capture him.   The possibility that during the chase the pursuing police vehicles might be operated in a negligent manner thereby causing a collision was sufficiently foreseeable to establish appellant's conduct as the proximate cause of the accident.   Therefore, I conclude the evidence is sufficient to support the jury's finding of proximate cause.

II. Implied Malice

The lead opinion holds implied malice requires proof the defendant committed an act with a high probability it would result in death.  (Lead opn., pp. 128, 129.)   Furthermore, the lead opinion concludes the persons killed in the helicopter collision were not within the class of persons who faced a high probability of death from appellant's conduct.  (Lead opn., p. 130.)   This new standard is unsupported by any authority and contrary to recent decisions of the Supreme Court.

In People v. Watson (1981) 30 Cal.3d 290, 179 Cal.Rptr. 43, 637 P.2d 279, the Supreme Court held a defendant who, while intoxicated, drove a car at excessive speeds through city streets nearly colliding with other vehicles before striking and killing one motorist, could be prosecuted for second degree murder based on implied malice.  (Id. at pp. 299–301, 179 Cal.Rptr. 43, 637 P.2d 279.)   In explaining the concept of implied malice, the court referred to two definitions of the term.  “We have said that second degree murder based on implied malice has been committed when a person does ‘ “ ‘an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life’ ”․'  [Citations.]  Phrased in a different way, malice may be implied when defendant does an act with a high probability that it will result in death and does it with a base antisocial motive and with a wanton disregard for human life.  [Citation.]”  (Id. at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.   Italics added.)

In People v. Patterson (1989) 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549, the Supreme Court granted review in a case from this court to consider the question of whether a defendant could be prosecuted for second degree felony-murder where the victim died after ingesting cocaine furnished to her by the defendant in violation of Health and Safety Code section 11352.   The trial court concluded the statute could be violated in ways that would not constitute an inherently dangerous felony and dismissed the murder charge.   On appeal, this court affirmed that ruling.  (Id. at p. 619, 262 Cal.Rptr. 195, 778 P.2d 549.)

In a badly divided decision, the Supreme Court reversed this court's decision and concluded that, while the elements of a crime must be viewed in the abstract to determine whether it is an inherently dangerous felony (id. at pp. 620–622, 262 Cal.Rptr. 195, 778 P.2d 549), since section 11352 had no “primary element” a court should focus on the defendant's furnishing cocaine in deciding whether the offense was inherently dangerous.  (Id. at pp. 622–625, 627–628, 262 Cal.Rptr. 195, 778 P.2d 549.)

For guidance, the court then considered the meaning of the phrase “inherently dangerous to life.”   In this context, Justice Kennard's lead opinion stated:  “Implied malice, for which the second degree felony-murder doctrine acts as a substitute, has both a physical and a mental component.   The physical component is satisfied by the performance of ‘an act, the natural consequences of which are dangerous to life.’  [Citation.]  The mental component is the requirement that the defendant ‘knows that his conduct endangers the life of another and ․ acts with a conscious disregard for life.’  [Citation.]  [¶] The second degree felony-murder rule eliminates the need for the prosecution to establish the mental component.   The justification therefor is that, when society has declared certain inherently dangerous conduct to be felonious, a defendant should not be allowed to excuse himself by saying he was unaware of the danger to life because, by declaring the conduct to be felonious, society has warned him of the risk involved.   The physical requirement, however, remains the same;  by committing a felony inherently dangerous to life, the defendant has committed ‘an act, the natural consequences of which are dangerous to life’ [citation], thus satisfying the physical component of implied malice.  [¶] The definition of ‘inherently dangerous to life’ in the context of the implied malice element of second degree murder is well established.   An act is inherently dangerous to human life when there is ‘a high probability that it will result in death.’  [Citations.]  [¶] We therefore conclude—by analogy to the established definition of the term ‘dangerous to life’ in the context of the implied malice element of second degree murder [citation]—that, for purposes of the second degree felony-murder doctrine, an ‘inherently dangerous felony’ is an offense carrying ‘a high probability’ that death will result․”  (Id. at pp. 626–627, 262 Cal.Rptr. 195, 778 P.2d 549.   Fns. omitted.)

Justices Mosk, Broussard and Panelli concurred in the definition of what constitutes an inherently dangerous felony.  (Id. at pp. 640–641, 262 Cal.Rptr. 195, 778 P.2d 549.)   No member of the court questioned or criticized Justice Kennard's definition of implied malice.

Three and one-half months later, the Supreme Court, by a six to one vote, again reversed a decision by this court in People v. Dellinger, supra, 49 Cal.3d 1212, 264 Cal.Rptr. 841, 783 P.2d 200.   The defendant was convicted of the second degree murder of his step-daughter, a two-year-old infant, who died as a result of a blow to her head and the ingestion of cocaine.   At trial, the lower court instructed the jury on implied malice using the 1983 version of CALJIC No. 8.11 (4th ed. pocket pt.) which contained both of the definitions stated in People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279, connected by the disjunctive word “or.”   Defendant challenged the use of the “wanton disregard for human life” definition and this court reversed, concluding that definition was confusing and failed to convey the requirement a defendant subjectively appreciate the life-threatening risk his conduct posed to the victim.  (Id. 49 Cal.3d at p. 1217, 264 Cal.Rptr. 841, 783 P.2d 200.)

The Supreme Court granted review and reversed the decision of this court.   First, the court concluded the “wanton disregard for human life” definition adequately conveyed that the defendant must have a subjective appreciation of his conduct's life-threatening risk.  (People v. Dellinger, supra, 49 Cal.3d at pp. 1217–1221, 264 Cal.Rptr. 841, 783 P.2d 200.)   In so ruling, the court noted “the two definitions of implied malice which [had] evolved ․ articulated one and the same standard.”  (Id. at p. 1219, 264 Cal.Rptr. 841, 783 P.2d 200.)

Nonetheless, Dellinger concluded the “wanton disregard for human life” definition had become “superfluous,” and “[t]he better practice in the future is to charge juries solely in the straight-forward language of the ‘conscious disregard for human life’ definition of implied malice.”  (People v. Dellinger, supra, 49 Cal.3d at p. 1221, 264 Cal.Rptr. 841, 783 P.2d 200.)   The court then considered the 1988 revision of CALJIC Nos. 8.11 and 8.31 (5th ed. 1988 bound vol.) which employs only the “conscious disregard for human life” test and stated:  “We approve of this newly revised implied malice instruction, and agree with the CALJIC committee's conclusion that the ‘conscious disregard for human life’ definition, standing alone, is ‘more comprehensible to the average juror.’  [Citation.]”  (Id. at p. 1222, 264 Cal.Rptr. 841, 783 P.2d 200.)   A few months later, the Supreme Court reaffirmed this holding in People v. Douglas (1990) 50 Cal.3d 468, 515–516, 268 Cal.Rptr. 126, 788 P.2d 640.

The foregoing cases contradict the attempt by the lead opinion to redefine implied malice.   Its author derives the requirement that the prosecution must prove the defendant committed an act with a high probability it would result in death from People v. Patterson, supra, 49 Cal.3d 615, 262 Cal.Rptr. 195, 778 P.2d 549.   But that case involved the felony-murder doctrine.   It is axiomatic that in a murder prosecution based upon a felony-murder theory, independent proof of malice is not required because it is not an element of the offense.  (People v. Dillon (1983) 34 Cal.3d 441, 465, 474–476, 194 Cal.Rptr. 390, 668 P.2d 697.)

Adding a high probability of death requirement to the present “conscious disregard for life” definition of implied malice is absurd.   Both Watson and Dellinger make patently clear the “wanton disregard for human life” and “conscious disregard for life” definitions are equivalent.   Therefore, the present definition of implied malice found in CALJIC Nos. 8.11 and 8.31, which was read to the jury in this case, properly defined the concept.   Adding the high probability of death requirement to the “conscious disregard for life” definition is merely redundancy.

The same issue was recently considered by Division One of this court in People v. Cleaves (1991) 229 Cal.App.3d 367, 280 Cal.Rptr. 146.   There the defendant was convicted of second degree murder based on his assisting a person to commit suicide.   On appeal, defendant argued the current versions of CALJIC Nos. 8.11 and 8.31 were erroneous because they referred to an act “The natural consequences [of which] are dangerous to human life,” and not an act “involving a high degree of probability that it will result in death․”  Citing Watson and Dellinger, Division One stated:  “Moreover, contrary to Cleaves's suggestion, Supreme Court precedent does not establish that the term ‘high probability of death,’ as opposed to the phrase ‘dangerous to human life,’ has been utilized as the pivotal terminology to define implied malice.   Rather, the two phrases have been used as alternative definitions for the same concept․  [¶] Cleaves has cited no authority which requires that implied malice be defined with the phrase high probability as opposed to dangerous to human life.   The phrases can be viewed as synonymous—i.e., an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death․”  (Id. 229 Cal.App.3d at pp. 377–378, 280 Cal.Rptr. 146.)

The lead opinion attempts to avoid the foregoing by concluding “the focus of the court in Dellinger was only upon the use of ‘conscious disregard for human life’ in place of ‘wanton disregard for human life.’   The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act.  ‘It is axiomatic that cases are not authority for propositions not considered.’   [Citations.]”  (Lead opn., p. 127, fn. 24.)

However, Dellinger made clear the Supreme Court's position concerning the definitions of implied malice.  “Although we hold that the ‘wanton disregard for human life’ definition of implied malice embodied in the 1983 revision of CALJIC No. 8.11 independently conveys the ‘subjective awareness' requirement to the jury, we are nevertheless persuaded that, by contemporary standards, it is a superfluous charge.   The better practice in the future is to instruct juries solely in the straightforward language of the second definition in that instruction—that malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life.  [Citations.]”  (People v. Dellinger, supra, 49 Cal.3d at p. 1215, 264 Cal.Rptr. 841, 783 P.2d 200.)

Later in the opinion, the court repeats this conclusion and expressly approves the most recent revisions of CALJIC Nos. 8.11 and 8.31 which incorporate only the “conscious disregard for life” definition.  (Id. at pp. 1221–1222, 264 Cal.Rptr. 841, 783 P.2d 200.)   Subsequent appellate decisions have employed the revised definition of implied malice without finding it necessary to add the “high probability of death” requirement.  (See People v. David (1991) 230 Cal.App.3d 1109, 1114, 281 Cal.Rptr. 656;  People v. Murray (1990) 225 Cal.App.3d 734, 745–746, 275 Cal.Rptr. 498;  People v. Butler (1990) 225 Cal.App.3d 77, 88–89, 274 Cal.Rptr. 742.)   In light of the Supreme Court's repeated approval of the current implied malice definition, the lead opinion's contrary reading of Dellinger is but another manifestation of its author's revulsion for implied malice.

I also reject the lead opinion's conclusion the victims were not within the zone of danger created by appellant's conduct.   The opinion asserts “The group of persons on the ground near Acosta faced a high probability of death.   But he did not kill someone there and the risk created for the group in the air was minimal.   Acosta's flight only caused the helicopter pilots to ‘be there.’   There is not a jot of evidence his frenetic style of driving affected the helicopter's pursuit in any way, let alone caused the negligent flying of the Costa Mesa pilot.   As to the victims, his conduct did not create a high probability of death․”  (Lead opn. at p. 130, fn. omitted.)   This analysis merely employs the concept of proximate causation under the guise of implied malice.

In People v. Albright (1985) 173 Cal.App.3d 883, 886–887, 219 Cal.Rptr. 334, the court rejected a claim the evidence must show the defendant encountered a risk knowing it posed a high probability of danger to the life of the ultimate victim.  “Nowhere in its opinion did the Watson court suggest implied malice requires awareness of life-threatening risk to a particular person.   Instead, implied malice may be found under Watson, whenever, inter alia, the facts establish a defendant's awareness and conscious disregard that his conduct poses a high probability of death to some person.  [Citation.]  A contrary construction would lead to absurd results, and would conflict with numerous decisions by courts of this and other states․”  (Id. at p. 887, 219 Cal.Rptr. 334.   Fn. omitted.)

The lead opinion questions the holding in Albright arguing it is erroneous to conclude a defendant would be “liable for any death which ensued if he consciously disregarded the life of anyone․”  (Lead opn. at p. 128.)   But Albright was concerned with the element of malice, not proximate cause.   The reasoning employed in that case assumed the defendant had proximately caused the victim's death.   Here, as well, the jury was required to decide whether appellant proximately caused the victims' deaths and found that he did.   Furthermore, the lower court fully and adequately instructed them on the subject and the lead opinion concedes the evidence supports the jury's finding on proximate causation.

I also conclude the evidence supports the jury's finding appellant acted with implied malice.   After consuming alcohol, cocaine, and heroin, appellant took the police on a 50–mile chase through a highly urban county, exceeding the speed limit, driving the wrong way, driving with his lights off, ignoring traffic control devices, making illegal turning movements, colliding with one vehicle and nearly causing several other accidents.   He admitted he knew police vehicles, including helicopters, were pursuing him, and that his conduct was dangerous at the time, but defiantly continued driving in the same fashion anyway.

Appellant frequently drove on the wrong side of roads during the chase, ignored traffic control devices, and even left the road where necessary to skirt other traffic.   Appellant slowed his vehicle only where it was necessary to negotiate a turn or steep grade, or because of heavy traffic, not in deference to the health and safety of his fellow motorists.   His attempts to warn other drivers by flashing the Pulsar's headlights was, at best, only a minimal effort to avoid collisions.   Contrary to appellant's claim, he crossed and re-crossed freeway traffic lanes on several occasions during the chase.

The judgment should be affirmed.2

 Whether the defendant may be held criminally culpable for the tragic deaths in this case is the key issue before us.   Justice Wallin says yes, but not for murder.   Justice Moore says yes and for murder.   I disagree with both because the law does not assign blame to an otherwise blameworthy actor when neither the intervening negligent conduct nor the risk of harm was foreseeable.1  (Pappert v. San Diego Gas & Electric Co. (1982) 137 Cal.App.3d 205, 210–211, 186 Cal.Rptr. 847;  People v. Hebert (1964) 228 Cal.App.2d 514, 520, 39 Cal.Rptr. 539.)

Or, as Justice Cardozo put it, “We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act and, therefore, of a wrongful one irrespective of the consequences.2  Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers, only because the eye of vigilance perceives the risk of damage.   If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality.   The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation;  it is risk to another or to others within the range of apprehension.”  (Palsgraf v. Long Island R. Co. (1928) 248 N.Y. 339, 162 N.E. 99, 100.)   The occupants of these helicopters were surely not “within the range of apprehension” of a fleeing criminal on the ground.3

To be sure, defendant represented a threat to everyone traveling the same roads and would have been responsible for any injury directly or indirectly caused by his actions in those environs;  but to extend that responsibility to persons in the air, whose role was merely to observe his movements, a simple enough task in far speedier helicopters, defies common sense.4  It was perfectly foreseeable that someone would be hurt on the ground via some sort of causal chain connecting to defendant's conduct;  the opposite is true of the airborne observers.   They were not in the zone of danger in this case by any stretch of the imagination, and the manner and circumstances of the collision could hardly have reasonably been foreseen.   Indeed, the lead opinion admits no similar accident has ever occurred anywhere according to our own research, as well as the trial expert.   Although less remote than a dispatcher suffering a coronary, perhaps, this was a “highly extraordinary result” (lead opn., p. 126) by any measure and, properly viewed, beyond the long arm of the criminal law.5

I do not address the implied malice issue, except to concur in the result reached in the lead opinion and to note that its resolution there appears entirely inconsistent with the conclusion reached in the proximate cause discussion.   For the reasons noted above, I would reverse with directions to dismiss the charges based on the helicopter collision.6

FOOTNOTES

2.   The pilot of the Newport Beach helicopter also testified that the correct procedure in changing the lead helicopter is for the helicopter relinquishing the lead to make a gradual climbing turn, stay in radio communication, and keep a safe distance away.

3.   Our research yielded no published civil or criminal case nationwide which involved a two-helicopter collision.

4.   But see Perkins and Boyce, Criminal Law (3d ed. 1982) pages 776–777, cautioning against use of tort law causation cases to determine the outcome in criminal cases where different factors and interests come into play.  (See also 1 LaFave & Scott, Substantive Criminal Law (1986) § 3.12, pp. 397–398.)

5.   For example, in People v. Scola, supra, 56 Cal.App.3d 723, 128 Cal.Rptr. 477, the court stated that the prosecution's burden of showing proximate cause is met “if the state produces evidence from which it may be reasonably inferred that appellant's act was a substantial factor in producing the accident.  [Citations.]”  (Id. at p. 726, 128 Cal.Rptr. 477.)   Under the facts of that case, the statement was correct because there was no intervening cause and the resulting harm was not extraordinary.   But, as I shall discuss, it would be incorrect to infer that the prosection need never show more.

6.   The American Law Institute has urged the use of “legal cause” instead.  (Perkins & Boyce, supra, at p. 775.)   Although there is some merit to its arguments, I abide with the traditional term, “proximate cause.”

7.   A tricky situation is presented where two independent actors each inflict wounds which would alone be fatal.   Perkins and Boyce deal with the problem by reasoning that but for the individual act of each, the death would not have occurred as it did.  (Perkins & Boyce, supra, at p. 773.)   LaFave and Scott submit that a sine qua non analysis does not work, but actual cause may be found if the act was a substantial factor in the death.  (1 LaFave & Scott, supra, at pp. 394–395.)Although the approach of Perkins and Boyce is somewhat artificial, I prefer it over that of LaFave and Scott.   It could be argued that a cause is not substantial if the victim would have died anyway.   And, as I shall discuss, the substantial factor issue is best reserved for exclusion from culpability;  i.e., “but for” causes are not sufficient unless they are a substantial factor in the harm.Under both approaches the result is the same.   An actor who delivers a deadly blow will suffer the consequences even though another independent deadly force is also applied, a result in keeping with the use of proximate cause analysis to assign appropriate culpability.

8.   I will consider cases where there is an intervening cause separately, as the commentators have.   Arguably, an independent intervening cause could be explained by saying it rendered the defendant's act “insubstantial.”   However, the traditional approach has been to determine only whether the defendant's act is substantial in the abstract or in comparison with a contributory or concurrent cause.   If it is not, the analysis goes no further.   If it is, the question becomes whether there is an intervening cause which should relieve the defendant of responsibility.  (Perkins & Boyce, supra, at pp. 790–823;  1 Witkin & Epstein, supra, at pp. 148–151;  1 LaFave & Scott, supra, at pp. 406–411, 413–414;  see also Rest.2d Torts, §§ 435 et seq., pp. 449 et seq.)

9.   If the actors are acting in concert, both would be culpable using an aiding and abetting theory, even if only one directly caused the death.  (See People v. Ross (1979) 92 Cal.App.3d 391, 400–401, 154 Cal.Rptr. 783 [defendant also culpable on aiding and abetting theory];  1 LaFave & Scott, supra, at p. 396.)

10.   For example, in People v. Caldwell (1984) 36 Cal.3d 210, 203 Cal.Rptr. 433, 681 P.2d 274, the Supreme Court found the provocative conduct of two of the defendants in resisting apprehension was a substantial factor in comparison to the threatening behavior of a codefendant who was eventually killed by the police.   Perkins and Boyce give as an example two actors who independently inflict knife wounds upon the victim, one of which severs the jugular while the other barely breaks the skin.   Although technically a concurrent cause, the latter is insubstantial.  (Perkins & Boyce, supra, at p. 779.)   However, if a cause is “substantial,” it will be treated as a proximate cause even if there is another concurrent or contributory cause.  (People v. Ross, supra, 92 Cal.App.3d at pp. 400–401, 154 Cal.Rptr. 783 [defendant brought victim to room and helped tie him before codefendant beat him and set him on fire];  People v. Vernon (1979) 89 Cal.App.3d 853, 864, 152 Cal.Rptr. 765 [defendant participated in beating victim to death];  see also 1 LaFave & Scott, supra, at pp. 394–396 [suggesting the substantial factor test is only appropriate in concurrent cause cases].)Perkins and Boyce treat “contributory negligence” of the victim or a third party as a contributory cause.  (Perkins & Boyce, supra, at pp. 782–787, but see p. 787 [discussing third party negligence as intervening].)   “Contributory negligence” can manifest itself when victims are negligent in escape efforts or are involved in automobile accidents, or when third parties render defense or treatment.   Although it is a rather fine distinction, the approach which analyzes such acts as intervening causes, which I discuss below, makes better sense, at least when they are done in response to an act of the defendant.  (See People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515 [victim drowned in attempt to swim to shore after drunken defendant capsized the boat];  People v. Harris, supra, 52 Cal.App.3d at p. 426, 125 Cal.Rptr. 40 [officer pursuing defendant at great speeds involved in accident killing victim];  Perkins & Boyce, supra, at p. 809 [discussing a contributory cause as intervening].)

11.   I have noted the potential mischief in the statement in People v. Scola, supra, 56 Cal.App.3d at page 726, 128 Cal.Rptr. 477, that the prosecution meets its burden by producing “evidence from which it may be reasonably inferred that [the defendant's] act was a substantial factor in producing the accident.”   In cases with a question of intervening cause, the analysis does not stop at that point unless intervening cause issues are subsumed under the substantial factor test.   (See fn. 7, ante.)

12.   Perkins and Boyce also give the example of a wife who is forced out into freezing weather by her husband, and opine that the action of the husband comes to a point of rest when the wife refuses an opportunity to take shelter at her father's residence.   They eschew using the “ ‘contributory negligence’ of the wife” as the explanation for the lack of proximate causation, reasoning that contributory negligence is not a defense to the prosecution.  (Id. at p. 781, fn. 74.)I part company with this analysis.   The husband's act has not “come to rest in a position of apparent safety,” albeit only due to the wife's affirmative decision not to go inside her father's house.   And, although the principle that the victim's contributory negligence is not a defense is frequently quoted in California cases (see, e.g., People v. Pike, supra, 197 Cal.App.3d at pp. 747–748, 243 Cal.Rptr. 54;  People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515;  People v. Harris, supra, 52 Cal.App.3d at p. 426, 125 Cal.Rptr. 40;  CALJIC No. 8.56), it is not applicable, as phrased, in a proximate cause analysis.Contributory negligence involves the concept of determining civil responsibility based upon lack of care by the parties.  (See Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 809–811, 119 Cal.Rptr. 858, 532 P.2d 1226.)   Almost by definition it would not be a defense to a criminal action.   Even so, it deals with a state of mind, not causation.   As I shall discuss, its only relevance is in determining the foreseeability that an intervening act, independent of the defendant, will cause harm.Thus, Perkins' and Boyce's example is better explained by concluding the wife's refusal of shelter in freezing weather was the extraordinary end produce of the husband's action.   If this example is excluded, the “comes to rest” concept can be categorized as a corollary of the substantial factor rule.

13.   Perkins and Boyce treat the activation of a latent condition as a dependent intervening cause.  (Perkins & Boyce, supra, at p. 792.)   Although their approach is plausible, I prefer to treat such situations as the exacerbated direct results of the defendant's acts.  (See 1 Witkin & Epstein, supra, at p. 147–148.)

14.   Criticizing the use of this term, Prosser and Keeton describe it as “the underlying idea of a limitation of liability short of the remarkable, the preposterous, the highly unlikely, ․ the cock-eyed and far-fetched․”  (Prosser & Keeton, Torts (5th ed. 1984) § 43, p. 299.)   They point out that the limitation, coupled with the principle that the exact result of the actor's conduct need not have been foreseen or foreseeable (1 Witkin & Epstein, supra, at p. 150), produces confusion and varied results.  (Prosser & Keeton, supra, at pp. 299–300.)Nevertheless, there is a need for some flexibility and common sense in the determination of proximate cause.  (Perkins & Boyce, supra, at pp. 776–777.)   Where there is flexibility in any legal standard, it will invariably be applied with some inconsistency.   But no court or commentator of which I am aware has argued for absolute liability for all directly caused results.To see why, I need only hypothesize that the excitement of the Acosta pursuit triggered a fatal heart attack in a police dispatcher.   Acosta's conduct would be a direct and substantial factor in it, but I doubt any court would hold the conduct to be the proximate cause of the death.   The only analytical route to absolve Acosta would be to find the heart attack was too extraordinary a result to merit culpability.  (Compare People v. Stamp, supra, 2 Cal.App.3d 203, 82 Cal.Rptr. 598 [defendant directly threatened clerk with a gun].)

15.   The refusal to allow “contributory negligence” to be a bar to a proximate cause finding need not be the product of any mechanical policy rule.   It can be grounded in the notion that it is not “abnormal” for people to react less “reasonably” under stress than if the stress were not present.   For purposes of ascribing causal responsibility it may be said that a negligent or foolish response is “normal.”To the extent that a dependent intervening cause is thought to “directly” carry through the act of the defendant to a harmful result, this analysis comports well with the rule that a defendant's act is the proximate cause of any harm caused directly by his act unless the result is “highly extraordinary.”   It also allows the court to find that a negligent, but highly extraordinary response precludes a finding of proximate cause, while a reckless but predictable response does not.  (See, e.g., People v. Armitage, supra, 194 Cal.App.3d at p. 421, 239 Cal.Rptr. 515 [victim's reckless reaction was not “wholly abnormal”];  compare Mull v. Ford Motor Co. (1966) 368 F.2d 713 [negligent driving by taxi driver superseded negligent design and manufacture of taxi];  Batts v. Faggart (1963) 260 N.C. 641, 133 S.E.2d 504 [negligence of second driver superseded accident caused by first driver].)   The focus is properly on the objective conditions present at the time the defendant perpetrated the causal act and the predictable, albeit sometimes unreasonable, responses of human beings to them.  (See Perkins & Boyce, supra, at p. 809;  1 LaFave & Scott, supra, at pp. 407–408.)

16.   Of course, this is a restatement of the principle that the defendant is culpable if his direct cause is a substantial factor in the harm, even if there is a concurrent cause.

17.   Although this statement is cogent, it is unfortunate the last sentence falls back into the concept of foresight from the perspective of a reasonable person.   The focus should remain solely on the probability of the result under the circumstances.

18.   Ultimately, law involves the attempt to deal with life on paper.   I adhere to the principle that until and unless humans can use language precisely to deal with every problem and situation, some amount of vagueness in legal standards is necessary and desirable.   It allows triers of fact to use valid human instincts to reach the correct result, even when language cannot adequately describe the path.  (See Christie, Vagueness and Legal Language (1964) 48 Minn.L.Rev. 885.)

19.   The Model Penal Code takes a similar approach, focusing on whether the result is “too remote or accidental in its occurrence to have a [just] bearing on the actor's liability or on the gravity of his offense.”  (Model Pen.Code, § 2.03(2)(b).)   LaFave and Scott also appear to look to the extraordinary nature of the result in determining causal responsibility, although they discuss it in terms of foreseeability.  (1 LaFave & Scott, supra, at pp. 390, 396–397, 400, 402–405, 407–415.)

20.   I reach this conclusion with due regard to LaFave and Scott's observation that proximate cause should not be found as readily in nonintentional crimes, i.e., those involving recklessness or negligence.   (1 LaFave & Scott, supra, at pp. 398–399.)

21.   As I have mentioned (see fn. 15, ante ), reckless conduct is not “highly extraordinary” per se.   It depends upon the circumstances.   (See People v. Armitage, supra, 194 Cal.App.3d at p. 420, 239 Cal.Rptr. 515.)   I need not deal with that problem here.   The Costa Mesa pilot was negligent, but there was no evidence he was reckless.   No statements show his state of mind.   Turner opined he violated an FAA regulation prohibiting “reckless and careless” flying without specifying the precise standard of care the pilot failed to meet.   Substantial evidence supports the inference he was merely negligent.

22.   In People v. Pike, supra, 197 Cal.App.3d at page 750, 243 Cal.Rptr. 54, the court concluded, “The speeds, places, conditions and methods of driving were primarily dictated by defendant;  he chose the route and speeds.   Predictably, the officers chose to follow suit․  The probability that this might result in one or both of the officers losing control and/or colliding with another vehicle or some object is sufficient to establish that defendant's conduct was a cause that, in natural and continuous sequence, produced [the officer's] death and without which that death would not have occurred.  [Citations.]”  And in People v. Harris, supra, 52 Cal.App.3d at page 427, 125 Cal.Rptr. 40, the court reasoned, “It was reasonably foreseeable that the officers would continue to chase him as he speeded recklessly and circuitously over public thoroughfares and failed to stop at boulevard stops, thus setting in motion circumstances creating peril to others on the public streets and a high probability that collisions, injuries and deaths would occur in the course of the chase.”Although the analyses in Pike and Harris are couched in terms of foreseeability, the reasoning is predicated upon the logical assumption that the flight of a suspect creates an appreciable probability that the police will chase, and in doing so sometimes be involved in accidents.   Where helicopters are involved the probabilities are undoubtedly reduced, but remain appreciable.

23.   Despite Justice Crosby's assertion to the contrary (separate opn. of Crosby, J. at p. 2, fn. 4), I specifically caution against using civil proximate cause analyses in a criminal case.  (See fn. 4, ante.)

24.   The defendant's railway attendants accidentally knocked a package of fireworks from a passenger's arms while boarding a train, causing a concussive explosion which overturned scales on the platform which struck the plaintiff.

25.   Justice Crosby does not dispute that such is the case here.

26.   To use his terminology (separate opn. of Moore, J. at p. 133, fn. 1), while it may become usual in the 21st century, it is unusual in the late 20th century.   The automobile pursuit cases provide guidance in the analysis, but do not serve as binding precedent because the air crashes are qualitatively different, at least in terms of probability.

27.   His opinion does provide two hypothetical fact situations.   (Separate opn. of Crosby at p. 139, fn. 4.)   As to the first, more facts are necessary to determine whether the defendant was a substantial factor in the crash.   The mere fact he was in an accident would probably be insufficient.   As to the second, the same question arises.   Further, the defendant would only be convicted if his conduct constituted at least gross negligence vis-a-vis the victim.

28.   (See part III, post.)

29.   Again, the commentators are in accord.  (Perkins & Boyce, supra, at pp. 60, 859, 860 [“grave risk of death”;  “strong likelihood”;  “obvious likelihood”];  2 LaFave & Scott, supra, at p. 200 [“ ‘very high degree’ of risk”].)

30.   The Attorney General argues that the approval of CALJIC Nos. 8.11 and 8.31 in People v. Dellinger, supra, 49 Cal.3d at pages 1221–1222, 264 Cal.Rptr. 841, 783 P.2d 200, mandates a contrary result because those instructions do not contain the “high probability” standard.   But the focus of the court in Dellinger was only upon the use of “conscious disregard for human life” in place of “wanton disregard for human life.”   The Supreme Court did not consider the language in the instructions concerning the degree of probability that death will result from the defendant's act.  “It is axiomatic that cases are not authority for propositions not considered.”  (People v. Gilbert (1969) 1 Cal.3d 475, 482, fn. 7, 82 Cal.Rptr. 724, 462 P.2d 580.)The string citation of People v. David (1991) 230 Cal.App.3d 1109, 1114, 281 Cal.Rptr. 656, People v. Murray (1990) 225 Cal.App.3d 734, 745–746, 275 Cal.Rptr. 498, and People v. Butler (1990) 225 Cal.App.3d 77, 88–89, 274 Cal.Rptr. 742 in Justice Moore's opinion (separate opn. of Moore, J. at p. 138) does not change this fact.   None of those cases addressed the “high probability” issue.  People v. Cleaves (1991) 229 Cal.App.3d 367, 280 Cal.Rptr. 146 did so, and concluded CALJIC Nos. 8.11 and 8.31 correctly stated the law because “an act for which the natural consequences are dangerous to human life by its nature involves a high probability of death.”  (Id. at p. 378, 280 Cal.Rptr. 146.)   That an act can be dangerous to human life without involving a high probability of death needs no explication.   If the Cleaves court meant to say that the term “dangerous to human life” in the instruction presumes a high probability, it deals with an instructional issue not presented here because, as a matter of law, the officers in the helicopter were not exposed to a high probability of death.   I hold this opinion not because of any “revulsion for implied malice” (separate opn. of Moore, J. at pp. 138–139), but because numerous references to a “high probability of death” by our supreme court mandate it.

31.   People v. Dellinger, supra, 49 Cal.3d at pages 1217–1218, 264 Cal.Rptr. 841, 783 P.2d 200 added the words “to human life” to the term “the risk involved.”   Although the words are proper because the risk at issue in a murder case is the risk to human life (see 1 LaFave & Scott, supra, at p. 336), they are superfluous to our analysis.

32.   I assume the “electric piano” was what I would call a player piano.   Thus, I am led to believe the defendant did not shoot the piano player.

33.   Put in our terms for proximate cause, it would be a death which was “almost extraordinary.”

34.   (See Pizano v. Superior Court (1978) 21 Cal.3d 128, 136–138, 145 Cal.Rptr. 524, 577 P.2d 659.)

35.   Perkins and Boyce apparently agree with this approach.   In speaking of the rigorous standard for implied malice, they describe an act “done with ‘knowledge of such circumstances that according to common experience there is a plain and strong likelihood that’ a certain type of social harm will ensue.”  (Perkins & Boyce, supra, at p. 859, fn. omitted, italics added.)   By this, I understand them to mean that the defendant must consciously disregard the type of harm which actually ensues.   For example, they recognize that “[i]n a case in which it has no bearing upon the issue of proximate cause, foreseeability [of the ensuing harm] may be a determinant of the degree of guilt, or even of the fact of guilt.”  (Id. at p. 813, fns. omitted.)

36.   At oral argument amicus counsel described a situation which might have qualified.   Had Acosta purposely maneuvered the helicopters into tall transmission towers, high wires, or a similar hazard with apparent conscious disregard for the well being of the occupants, malice could be inferred.

37.   Justice Crosby also claims that our resolution of the malice issue “appears entirely inconsistent with the conclusion reached in the proximate cause discussion.”  (Separate opn. of Crosby at p. 3.)   Not so.   A nonextraordinary result for proximate cause purposes does not require a “high risk” victim;  implied malice does.   Similarly, Justice Crosby's concern that the victim be in a zone of danger (Palsgraf v. Long Island R. Co., supra, 248 N.Y. 339, 162 N.E. 99, 100) properly belongs in an analysis of gross negligence as it relates to involuntary manslaughter.   Because Acosta was convicted of second degree murder, I have not considered that question.

38.   Acosta's argument that the court erred in instructing on malice is moot.   However, by our foregoing analysis, the court should have informed the jury that a high probability of death was required.   (People v. Watson, supra, 30 Cal.3d at p. 300, 179 Cal.Rptr. 43, 637 P.2d 279.)   This omission would provide an independent ground for reversal.

39.   This instruction read:  “To constitute murder or involuntary manslaughter or vehicular manslaughter, there must be, in addition to the death of a human being, an unlawful act which was a proximate cause of that death.  [¶] A proximate cause of a death is a cause which, in natural and continuous sequence, produces the death, and without which the death would not have occurred.  [¶] There may be more than one proximate cause of a death.   When the conduct of two or more persons contributes concurrently as proximate causes of a death, the conduct of each of said persons is a proximate cause of the death if that conduct was a substantial factor contributing to the result.   A cause is concurrent if it was operative at the moment of death and acted with another cause to produce the death.  [¶] If you find that the defendant's conduct was a proximate cause of a death to another person, then it is no defense that the conduct of some other person, even the deceased person, contributed to the death except in the event that you find that conduct to be unforeseeable.”

40.   The first instruction read:  “An intervening cause which breaks the chain of causation from the original act is itself regarded as the proximate cause of the death and relieves the original actor of criminal liability.  [¶] The test of whether an independent intervening act, which operated to produce the deaths, breaks the chain of causation is the foreseeability of that act.  [¶] An act is not foreseeable and thus is a superseding cause of the death if the independent intervening act is highly unusual or extraordinary, not reasonably likely to happen.”The second instruction advised:  “If you find that the operation of either or both of the helicopters was so highly unusual or extraordinary as to be a superseding cause of death not reasonably foreseeable, then you must find defendant is not the proximate cause of the deaths and acquit him․”The prosecution's instruction stated:  “A defendant may be criminally liable for a result directly caused by his act even if there is another contributing cause.   If an intervening cause is a normal and reasonably foreseeable result of the defendant's original act, the intervening act is dependent and not a superseding cause and will not relieve defendant of liability.   The consequence need not have been a strong probability, a possible consequence which might reasonably have been contemplated is enough.   The precise consequence need not have been foreseen.   It is enough that the defendant should have foreseen the possibility of some harm of the kind which might result from his act.   An intervening act may be so disconnected and unforeseeable as to be a superseding cause, that in such a case the defendant's act will be a remote and not a proximate cause.   It is only an unforeseeable intervening cause, an extraordinary and abnormal occurrence, which rises to the level of an exonerating, superseding cause.”

FOOTNOTE.   See footnote 1, ante.

43.   Of course, reversal of the murder counts for insufficient evidence precludes retrial on those charges.   Acosta's claim of a cruel and unusual sentence is therefore rendered moot.

1.   While my colleague is willing to embrace the era of the automobile in the 20th century by citation to a 1928 opinion of Justice Cardozo, he is not ready to leave and enter the 21st century.

2.   To the extent my colleagues cannot agree, I am forced to agree that defendant may be retried.

1.   If despicable behavior alone were enough to affix criminal responsibility on a defendant for any remote consequence, no matter how unexpected, that would constitute the wholesale adoption of the concept of strict liability into the law of crimes.   Many might view that as desirable, but that is not the law at present.

2.   In 1928 Cardozo was not concerned with helicopter crashes or heart attacks visiting excited dispatchers.   But he did recognize that a wrongdoer's responsibility for an unintended injury has a limit, as the balance of the quotation reveals.  (See lead opn., p. 124, fn. 14.)

3.   Occasionally, screen protagonists, such as James Bond, do—usually deliberately—fell pursuing helicopters from the ground by various means.   That is not the real world, thankfully;  and this is not such a case in any event.

4.   A slippery concept at best, proximate cause is ultimately a judicial application of educated common sense to a given set of facts.   Because the tort and criminal formulations of the term are interchangeable, if the lead opinion is correct, the driver who causes a freeway accident could be liable in tort for the crash of helicopters broadcasting traffic advisories at the scene.   Such a motorist should have every reason to anticipate the arrival of aerial surveillance, but it is inconceivable that a court would find him liable for the negligence of a pilot under such circumstances.   The lead opinion suggests there may be different factors involved in tort and criminal analyses of proximate cause.  (Lead opn., p. 121, fn. 4.)   Maybe so, but the law of crimes virtually always employs more conservative standards in fixing responsibility than does the civil law.   Does the lead opinion mean to imply that this defendant is criminally, but not civilly, liable for this collision?   If anything, I would think the opposite would be the case.In some remote parts of our state, traffic laws are enforced from the air.   Signs along the highway warn of this.   Can an ordinary speeder be guilty of manslaughter when a police aircraft in the process of clocking him crashes because of the negligence of some third party?   The theory of the lead opinion would seemingly support such a prosecution.

5.   The lead opinion makes the tautological accusation that I cite no case for this conclusion.  (Lead opn., p. 128.)   That, of course, is the point.   If a similar case did exist, however it was decided, it would tend to undermine, not support, my view that this was a highly extraordinary accident.   But the reverse is also true.   My colleagues both correctly note that the first defendant to cause harm in a particular way should not necessarily be free from prosecution;  but to apply that particular rule to these unusual facts is to jettison the exception for highly extraordinary events while pretending it still exists.

6.   I join in the unpublished portions of the lead opinion.

WALLIN, Associate Justice.